W.C. No. 4-221-033 4-221-429.Industrial Claim Appeals Office.
January 10, 2005.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Harr (ALJ) denying a petition to reopen a settlement agreement. The ALJ found there was no mutual mistake of material fact which would justify reopening. We affirm.
The claimant failed to procure a transcript of the hearing before the ALJ. Thus, this recitation of facts is based on the ALJ’s findings and the documentary evidence contained in the record.
The claimant allegedly sustained two injuries while employed by the respondent employer. The first injury, which allegedly affected the right upper extremity and occurred on January 14, 1994, was assigned W.C. No. 4-221-033. The second injury, which allegedly affected the lower extremities and back occurred on May 21, 1994, was assigned W.C. No. 4-221-429.
A settlement agreement was originally entered into in August 1996, but a dispute arose concerning whether or not the settlement agreement applied to both claims, or only to the claim for the January injury. After substantial litigation, we ultimately affirmed the ALJ’s determination that the settlement applied to both claims. (ICAO Final Order dated February 18, 2003; Respondents’ Exhibit H). The claimant appealed our February 18 order to the Court of Appeals. While the appeal was pending, the parties entered into a second settlement agreement which the claimant signed on May 21, 2003. The settlement agreement expressly applies to both claims, all injuries including “psychological,” and provides for full and final settlement of all claims in exchange for the payment of $5,000 (in addition to previous payments). The claimant agreed to surrender the right to reopen either claim except on grounds of fraud or mutual mistake of material fact.
The second settlement agreement was approved by a pre-hearing administrative law judge (PALJ) on June 10, 2003. The PALJ’s order states that the claimant read the settlement agreement, was aware of the benefits available under the Act, and saw a video advisement concerning his rights in the settlement process.
In September 2003 the claimant filed a petition to reopen the settlement agreement alleging a “mistake by Pinnacol Assurance.” The petition essentially alleges that the amount of the settlement was too low.
Following a hearing on the petition the ALJ entered the order under review. The ALJ found the claimant testified to dissatisfaction with the amount of the settlement, particularly in view of $227,000 in outstanding medical expenses. However, the ALJ found that at the time of the second settlement both the claimant and the respondents were fully aware of the amount of medical expenses alleged to be due, as well as the nature of the claimant’s medical condition. Based on the advisement of the PALJ and the disclosures contained in the settlement agreement itself, the ALJ concluded there was no mutual mistake of material fact, and the evidence established only that the claimant “regrets entering into the settlement.” Consequently, the ALJ denied the petition to reopen.
In his brief, the claimant reiterates the opinion that the amount of the settlement was too low because the respondents “accepted all liability.” A valid settlement agreement under which the claimant surrenders the right to reopen may be set aside and additional benefits awarded only on a showing of fraud or mutual mistake of material fact. Section 8-43-204(1), C.R.S. 2004; section 8-43-303(1), C.R.S. 2004. A mutual mistake of material fact is one in which the parties share a common misconception concerning a material term or condition of the agreement. Maryland Casualty Co. v. Buckeye Gas Products, Co., 797 P.2d 11
(Colo. 1990); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993). The misconception must pertain to an existing fact rather than an opinion or prophecy about the future. Gleason v. Guzman, 623 P.2d 378, 383
(Colo. 1981).
The existence of a mutual mistake is essentially factual in nature Gleason v. Guzman, 623 P.2d at 385. We must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. Where, as here, the claimant fails to procure a transcript, we must presume the ALJ’s findings concerning the testimony are supported. Nova v. Industrial Claim Appeals Office, 754 P.2d 800
(Colo.App. 1988).
The ALJ found the claimant alleged a mutual mistake based on the respondents’ decision to settle for $5,000 considering the amount of outstanding medical benefits. (Findings of Fact 5, 7). However, this finding supports the ALJ’s determination that there was no “mutual mistake of material fact.” The ALJ found, based on the claimant’s own testimony, that both parties were aware of the total amount of medical expenses, as well as the claimant’s medical condition. Thus, at most, the settlement reflects a difference of opinion between the parties concerning the respondents’ potential liability if the settlement were reopened and the case proceeded to hearing, not a mutual misunderstanding of an existing fact essential to the agreement. The ALJ’s order reflects a correct application of the law to the facts and we may not interfere with it. Section 8-43-301(8).
The claimant asserts that the ALJ did not review the evidence and made numerous unspecified errors in the conduct of the hearing. However, the ALJ is presumed to be competent and unbiased in the conduct of the hearing unless the record shows to the contrary. Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995). Further, the party asserting error on appeal must produce a record sufficient to demonstrate the error. Fleet v. Zwick, 994 P.2d 480 (Colo.App. 1999); Clark v. Hudick Excavating, Inc., W.C. No. 4-524-162 (November 5, 2004). Because the claimant failed to procure a transcript there is no basis to conclude the ALJ committed any error in the conduct of the hearing, or that he failed to consider the evidence.
The claimant also states in his brief that his doctor opined the claimant is “not in the right frame of mind to be signing any settlements or papers.” To the extent this may be construed as an assertion that the claimant was not competent to enter into the settlement, that issue was not tried before the ALJ. Consequently, the issue was waived and we may not consider it for the first time on appeal. Kuziel v. Pet Fair, Inc., 948 P.2d 103 (Colo.App. 1997).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 29, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ David Cain
____________________ Robert M. Socolofsky
Angelo Balachio, Aurora, CO, Mu Zeta Housing Corp., c/o Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, Legal Department, Pinnacol Assurance — Interagency Mail, Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO (For Respondents).